James Bryce in “History and Jurisprudence” (1904) said that idolatry is when man tries to create God. Legal idolatry is when the law tries to create the Constitution. The Constitution of Kenya Review Commission is making a novel attempt at it.
One of the best arguments in jurisprudence regarding the chicken and egg situation that Kenya finds itself in is found in “Salmond on Jurisprudence”. In it, Professor Glanville Williams argues as follows: –
“The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words, constitutional practice is logically prior to constitutional law. There may be a state and constitution without any law, but there can be no law without a state and a constitution. No constitution therefore can have its source and basis in the law. It has of necessity an extra legal origin, for there can be no talk of law until some form of constitution has already obtained de facto establishment by way of actual usage and operation. When it is once established, but not before, the law can, and will, take notice of it. Constitutional facts will be reflected with more or less accuracy in courts of justice as constitutional law. The law will develop for itself a theory of the constitution, as it develops a theory of most other things which may come in question in the administration of justice”.
“As an illustration of the proposition that every constitution has an extra-legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English Crown. Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal, it was illegal. Yet, so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact. Courts, legislators, and law had alike their origin in the constitution; therefore, the constitution could not derive its origin from them. So also, with every constitution that is altered by way of illegal revolution.”
These are the questions that are now hounding the review process. Can the Constitution of Kenya Review Commission, a creature of Parliament, direct the Institution, a creature of the Constitution, on what it must pass? Can the Constitution of Kenya Review Act, a law passed by Parliament, hinder the house in its exercise of powers and duties imposed o it by the Constitution regarding amendment of the Constitution? Can the National Constitutional Conference, a creature of Parliament, be supreme over its creator?
Legally, the answer is no. But there us more political logic in the process than legal logic. Kenya has tried to carry out an essentially political process (the negotiation and adoption of a new Constitution),using a legal mechanism. But when the limitations of the law are reached, Kenya is asserting the political mandate. The review process must stop at amendment of the Constitution. Any attempt to move over to the repeal of the Constitution and adoption of a new one will make the process itself illegal and treasonable.
Professor Hans Kelsen in General Theory of Law and State says: “It I just the phenomenon of basic revolution which clearly shows the significance of the basic norm. Suppose that a group of individuals attempt to seize power by force, in order to remove the legitimate government in a hitherto monarchic state, and to introduce a republican form of government. If they succeed, if the old order ceases, and the new order begins to be efficacious, because the individuals whose behavior the new order regulates actually behave, by and large, in conformity with the new order, then this is considered as a valid order. It is now according to this new order that the actual behavior of individuals is interpreted as legal or illegal. But this means that a new basic norm is presupposed. It is no longer the norm according to which the old monarchical constitution is valid, a norm endowing the revolutionary government with legal authority. If the revolutionaries fail, if the order they have tried to establish remains inefficacious, then, on the other hand, their undertaking is interpreted, not as a legal, a law creating act, as the crime of treason, and this according to the old monarchic constitution and its specific basic norm. ”
It is important that the review process observe the rules of jurisprudence. The process cannot seek to install a new legal order and then seek to base the same on the law. As Professor Williams says, no constitution can have its source and basis in the law. If we seriously want to create a new legal order, we must look for an extra- legal origin to it. Otherwise, we have to content ourselves with amendments of our current Constitution.
One safe way of creating the extra-legal origin is by having a bloodless coup against the old Constitution. This coup, led by Parliament, will result in the adoption of a new legal order and the overthrow of the old one. Subsequently, all institutions of the state will agree to renounce their allegiance to the old one and swear allegiance instead to the new one. This is what Fiji did in 1997, though it unfortunately resulted in a coup d’état three years later. Overthrowing constitutions is a risky business.